Dutch Whac-A-Mole Game Against The Pirate Bay Apparently Works Better Without Due Process

from the judicial-miscarriage dept

Last week, I had the pleasure of meeting, briefly, Tim Kuik, the head of BREIN, the Dutch anti-piracy group that has been fighting against file sharing on a variety of fronts. We had an enjoyable conversation (as part of a larger discussion) in which he insisted that he and BREIN recognized the future opportunities of the digital market, and that BREIN was not interested in trying to put the genie back in the bottle -- in response to my suggestion that too many in the industry were trying to do exactly that. That may be true, but it's difficult to see how that's the case when immediately after this we hear of stories about BREIN going to court to shut down a proxy by the Dutch Pirate Party to point people to The Pirate Bay -- a site that BREIN has forced ISPs to block.

Of course, blocking sites on the web is impossible, and the silly continued whac-a-mole against proxies seems like a huge waste of time and resources that could have been put towards helping to develop compelling new business models. But, a much bigger concern is the process by which this latest proxy was shut down. Or, rather, I should note it's not so much the process, but the lack of due process. That is, a court ordered the proxy to be taken down without allowing the Dutch Pirate Party to testify on its own behalf:

The Pirate Party was not heard in the matter (ex parte) and according to board member “blauwbaard” the judge ignored their requests to be heard.

“The judge has decided to ignore our express and valid request to have the injunction either denied flat-out, or to at least be heard in the matter before a decision was made,” blauwbaard states in a response.

“This decision is even more strange because BREIN was allowed to bring over 20 pages of arguments to convince the judge to stretch a quaint rule of IP-law, meant to block the sudden appearance of mass quantities of counterfeited goods, far enough to be applied to the website of a political party.”

A court ordering a website taken down without allowing the site itself to speak on its behalf? That seems pretty extreme. A proxy is simply a redirect in a case like this. It's something just about anyone can do, and chasing after each and every proxy -- and then not allowing them to speak for themselves in court, seems like a perfect example of trying to put the genie back in the bottle, no matter how much BREIN insists that's not their goal.

And, unfortunately, the story gets even worse, the more it moves forward. The Dutch Pirate Party replaced their proxy with a page that
linked to other proxies as well as an explanation of their position. This seems like a classic free speech situation. Except... BREIN claimed that even those links to other proxies violated the injunction, and have demanded the party take them down as well. The Pirate Party appears to be getting ready to fight this, noting that BREIN keeps trying to rewrite the specifics of the court's order (i.e., trying to stuff that genie back into the bottle) every time a different website shows how ridiculous it is to ban internet access to a website.